DE FACTO PARTNER VISAS AND REGISTERED RELATIONSHIPS
DE FACTO PARTNER VISAS AND REGISTERED RELATIONSHIPS
For a De Facto Relationship to be the basis for a partner visa application, the Migration Regulations (Commonwealth legislation) stipulate that there be genuine relationship to the exclusion of all others and not living separately or permanently apart AND should be of at least 12 months duration. An exception to this minimum period can be made where registration of the relationship has been obtained from an Australian state.
A certificate issues from the state authority. The states will recognise relationships in both opposite sex and same sex circumstances. State legislation processes will be recognised by the Immigration Department for this purpose of reducing the 12 months duration set in its Commonwealth legislation.
Careful examination of the nature and community recognition of a de facto relationship is needed to ensure that visa applications are soundly founded on a firm base, before proceeding with the relationship registration application in the state. The certificate of registration waives only the minimum period of 12 months only. The Immigration Department still has regard for, and requires evidence for, the full circumstances of the relationship for assessment of there being a genuine continuing relationship relationship to the exclusion of all others. These relate to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.
THE COMMONWEALTH ACTS INTERPRETATION ACT 1901
For the purposes of a provision of an Act that is a provision in which de facto partner has the meaning given by this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if:
(a) the person is in a registered relationship with the other person under section 2E; or
(b) the person is in a de facto relationship with the other person under section 2F.
For the purposes of paragraph 2D(a), a person is in a registered relationship with another person if the relationship between the persons is registered under a prescribed law of a State or Territory as a prescribed kind of relationship.
The Acts Interpretation (Registered Relationships) Regulations 2008 regulation 3 currently prescribes the following as relevant state legislation.
For section 2E of the Acts Interpretation Act 1901 , the following laws and kinds of relationship are prescribed:
(a) Relationships Act 2008 (Vic) — a registered domestic relationship as defined in section 3 of that Act;
(b) Relationships Act 2003 (Tas) — a significant relationship as defined in section 4 of that Act;
(c) Civil Partnerships Act 2008 (ACT) — a relationship as a couple between 2 adults who meet the eligibility criteria mentioned in section 6 of that Act for entry into a civil partnership;
(d) Relationships Register Act 2010 (NSW) — a registered relationship as defined in section 4 of that Act;
(c) Relationships Act 2011 (Qld)—a relationship as a couple between 2 adults who meet the eligibility criteria mentioned in section 5 of that Act for entry into a registered relationship.
(1) For the purposes of paragraph 2D(b), a person is in a de facto relationship with another person if the persons:
(a) are not legally married to each other; and
(b) are not related by family (see subsection (6)); and
(c)have a relationship as a couple living together on a genuine domestic basis.
(2) In determining for the purposes of paragraph (1)(c) whether 2 persons have a relationship as a couple, all the circumstances of their relationship are to be taken into account, including any or all of the following circumstances:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) the care and support of children;
(h) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance mentioned in subsection (2) is necessary in determining whether 2 persons have a relationship as a couple for the purposes of paragraph (1)(c).
(4) For the purposes of paragraph (1)(c), the persons are taken to be living together on a genuine domestic basis if the persons are not living together on a genuine domestic basis only because of:
(a) a temporary absence from each other; or
(b) illness or infirmity of either or both of them.
(5) For the purposes of subsection (1), a de facto relationship can exist even if one of the persons is legally married to someone else or is in a registered relationship (within the meaning of section 2E) with someone else or is in another de facto relationship.
(6) For the purposes of paragraph (1)(b), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
(7) For the purposes of subsection (6), adopted means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
TURNING TO STATE REGISTRATION OF RELATIONSHIPS, SPECIFICALLY NSW.
NSW RELATIONSHIPS REGISTER ACT 2010 SECTION 5
(1) Two adults who are in a relationship as a couple, regardless of their sex, may apply to the Registrar for registration of their relationship.
(2) A relationship cannot be registered unless at least one of the adults resides in New South Wales.
(3) A relationship cannot be registered if:
(a) either adult is married, or
(b) either adult is registered under this Act or a corresponding law as being in a registered relationship or an interstate registered relationship, or
(c)either adult is in a relationship as a couple with another person, or
(d) the adults are related by family.
(4) Two adults are
“related by family” if:
(a) one is the child (including an adopted child) of the other, or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or
(c)they have a parent in common (including an adoptive parent of either or both of them).
(5) Subsection (4) applies:
(a) even if an adoption has been declared void or is of no effect, and
(b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children.
(6) Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order.
Commentary on the process:
When the procedure is has been carefully followed and a valid application is made, there is a 28 day cooling off period, before it is possible for a certificate to be issued. The certificate does not require attendance before any official. The basis of the process is a statutory declaration, not as to the circumstances of the relationship, but that the qualifying circumstances in section 5 are in place.
As part of the partner visa process for you, assistance is provided by Hallmark Immigration with this application for registration process.
CONSEQUENCES OF REGISTERING A RELATIONSHIP INCLUDE:
Commitment to a process to follow, if ever required, to de-register the relationship. Even if you were to later get married (over the top of the registered relationship) and then, subsequently, divorce.
Recognition of the de facto relationship in property/financial matters. The Commonwealth FAMILY LAW AMENDMENT (DE FACTO FINANCIAL MATTERS AND OTHER MEASURES) ACT 2008 (NO. 115, 2008) was passed to ensure the de facto relationship mirrored the marriage relationship in many respects. Consequential amendments were made at the time to other legislation.
A New Tax System (Family Assistance) Act 1999
Bankruptcy Act 1966
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
Federal Magistrates Act 1999 101
First Home Saver Accounts Act 2008
Income Tax Assessment Act 1997
Proceeds of Crime Act 2002
Social Security Act 1991
Veterans’ Entitlements Act 1986